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The law society won at the original hearing and at the first three levels of appeal. Groia finally prevailed in the Supreme Court, with a 6-3 majority overturning the finding of professional misconduct. Groia did behave badly, the court found, but his allegations against the prosecution were made in good faith and had a reasonable basis (more on that in a minute), so the test for incivility was not satisfied.

The important thing for the defence bar was the court’s strong affirmation of the importance of a fiercely independent defence bar and its formulation of a test that will confine incivility prosecutions to fairly extreme instances.

In his reasons for the majority, Justice Michael Moldaver purports to adopt the test for incivility developed by the tribunal and accepted by the lower courts. On this formulation, allegations of misconduct against opposing counsel will not justify a finding of incivility if they are made in good faith and have a reasonable basis. But in an unusual twist, Moldaver found that even when purportedly assessed on the deferential “reasonableness” standard, the result reached by the tribunal was unsustainable. Why?

In effect, the majority found that Groia hadn’t been uncivil, just ignorant of the law. He believed, in good faith, that the OSC prosecutors had misconducted themselves by not tendering all relevant documents in evidence even though, in reality, no such obligation exists. In Moldaver’s telling, this faulty legal theory was the basis for Groia’s allegations and provided them with a “reasonable basis.” In other words, the lawyer’s own misunderstanding of the law ended up providing the reasonable basis for his mistaken allegations of misconduct.

This is, to my mind, strange. A criminal accused cannot rely on a mistake of law — even one made entirely in good faith — in order to avoid being convicted and potentially imprisoned. How can it be that a lawyer, whose professional duty it is to know the law, may rely on their own legal ignorance to avoid a finding of misconduct? An informed layperson might legitimately wonder what is going on here.

On the other hand, there is something to the distinction drawn by Moldaver between competence and civility, which are not the same thing but are both valid concerns for the regulator. A lawyer whose own misunderstanding of the law causes him to make baseless allegations of misconduct against a colleague may be more properly prosecuted for incompetence than for incivility. The lawyer’s incivility may well be just a symptom of a deeper competence-based problem. The problem is that few — if any — lawyers are ever prosecuted for incompetence. Perhaps one reason is that incivility annoys other lawyers while incompetence is mainly the client’s problem. My sense is that the Law Society Of Ontario could do better in this respect.

As for the Supreme Court’s stringent test for incivility, I see it as a welcome — if subtle — retreat from the court’s Jordan follow-up decision in R. v. Cody (2017), which was poorly received by the defence bar. There, the court elaborated on what counts as “defence delay” for the purposes of the s. 11(b) unreasonable delay analysis, which was revolutionized the previous year in Jordan. According to Cody, any defence conduct that is “illegitimate” will not count toward the Jordan presumptive ceilings.

While the court was careful in Cody to note that not all “illegitimate” defence positions will amount to professional misconduct, the terminology it used was unfortunate. Now, under Cody, s. 11(b) applications tend to devolve into reciprocal finger-pointing by Crown and defence about whose conduct was worse. This is hardly a recipe for the culture of civility that, according to the court in Groia, is effectively the “glue” that holds the system together. And, yet, at a time when Crown counsel are being encouraged by the s. 11(b) jurisprudence to label unmeritorious defence positions as “illegitimate,” it would have been unseemly for the Groia court to place tight strictures on defence counsel’s ability to make allegations against the Crown.

In time, I hope the court will see fit to revisit Cody and clarify that allegations of illegitimacy are unnecessary in the s. 11(b) context — and ultimately unhelpful in fostering a broader culture of civility. That culture exists because it’s rightly seen as mutually beneficial to the parties and more conducive to trial fairness than the alternative. The threat of professional sanction is not why most lawyers conduct themselves in a civil fashion, but it certainly could chill aggressive advocacy if the test were too broadly drawn. Despite the questionable manner in which the result was reached, it seems that the Supreme Court took that danger to heart.

Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He’s available at mgourlay@hhllp.ca.